According to the case People v. Seymour, the Denver Police Department used an investigative technique called a “reverse-keyword warrant” to help it identify leads in an arson case. After examining the warrant, Google gave DPD a list of five Colorado IP addresses that had searched the location of the fire around a two-week period prior to the arson.
Based on the information provided by Google, DPD arrested and charged Gavin Seymour and two others with multiple counts of first-degree murder in the arson that killed five people.
The Colorado Supreme Court addressed the constitutionality of DPD’s use of a reverse-keyword warrant to obtain certain user-account data related to the arson.
Seymour moved to suppress the information of the warrant, arguing it lacked probable cause and particularity. The trial court denied this motion but the state Supreme Court granted a review.
After evaluation, the Supreme Court discharged the rule to show cause because it found the warrant particularized the place to be searched and what needed to be seized, and, among other things, determined the warrant was executed in good faith, so it shouldn’t be suppressed under the exclusionary rule. But the court did also find the warrant was “constitutionally defective.”
The state Supreme Court affirmed and remanded the case to the trial court for further proceedings.
“Unique case. They said it violated the constitution but they acted in good faith. The next cops who try it won’t have that protection due to this case,” wrote David Lane of Killmer Lane, LLP to Law Week via email. Lane responded on behalf of the Colorado Criminal Defense Bar.
“The issues presented in the Seymour case are new territory in regard to the emerging challenges for courts as rapidly advancing technology continues to collide head-on with existing 4th amendment jurisprudence,” wrote Tom Raynes, executive director of the Colorado District Attorneys’ Council, to Law Week via email.
Justice Maria Berkenkotter concurred with the judgment.
“I agree with the dissent that the search here was unconstitutional,” wrote Berkenkotter in the case opinion.
According to Berkenkotter, because people who use Google have privacy and possessory interests in their internet search records, DPD needs to have proven individualized probable cause in order to search records.
“Here, there was no probable cause as to any individual Google user. Certainly, there was no probable cause as to Seymour,” added Berkenkotter.
Berkenkotter concurred with the majority and agreed the officers acted reasonably in carrying out this type of search. Berkenkotter noted nowhere in Colorado law is there a law concerning the constitutionality of reverse-keyword searches.
“Even though I agree with the dissent’s analysis and its conclusion that the reverse-keyword search warrant was invalid, I would discharge the rule to show cause,” added Berkenkotter.
Justice Monica Márquez, joined by Justice Carlos Samour Jr., dissented.
“The warrant here was invalid under both the Fourth Amendment and article II, section 7 of the Colorado Constitution, and the good-faith exception to the exclusionary rule cannot salvage its unconstitutionality,” wrote Márquez and Samour in the case opinion. “The majority’s ruling … gives constitutional cover to law enforcement seeking unprecedented access to the private lives of individuals not just in Colorado, but across the globe. And I fear that today’s decision invites courts nationwide to do the same.”
“I agree that people have an expectation of privacy in their Google searches and the police need some particularity in narrowing any such search as opposed to searching billions of people’s searches,” added Lane. “Very difficult issues here and the court did a good job addressing the fundamental questions involved.”
“While the opinion perhaps presents more questions than answers in terms of a dispositive rule, a reasonable takeaway is that law enforcement may now be on notice that the particularity requirements for a warrant in similar situations will be carefully scrutinized by this Court moving forward,” added Raynes. “Ultimately, the Court’s reliance on the good faith exception in Seymour is correct, given that this is a new technology and the legal issue presented has not been addressed by any other Supreme Court in the country.”
The Future
Colorado’s legal community seems to be divided on the issue of a reverse-keyword warrant.
“This case is the first I’ve heard of and any future internet searches are going to have to address the issues laid out by the court here,” noted Lane.
“This case highlights the tension between expectations of privacy by citizens with law enforcement,” added Lane. “Generalized searches of everyone to find the bad guy will not be tolerated and there is a long line of non-internet search cases so holding.”
“Cops will have to look at whether they are searching millions of people or just their suspect,” wrote Lane.
“Law enforcement cannot be expected to predict how the Court may interpret the 4th amendment standard of ‘reasonable expectation of privacy’ for internet activities and new technologies when both the Supreme Court and trial judges appear to be too divided to lay down a bright line rule,” noted Raynes.